IPBiz

Monday, November 30, 2009

Back in June 2007, IPBiz noted the response of one practitioner to KSR v. Teleflex was that KSR required the patent advocate to tell an extremely cool story to the USPTO (or to the court). Flash forward to the BIO Corporate Counsel meeting in DC in 2009, and someone was making exactly the same point.

The problem is that telling stories, and receiving them, is a highly subjective matter. This point was emphasized in a recent post on politico about President Obama:

Presidential politics is about storytelling. Presented with a vivid storyline, voters naturally tend to fit every new event or piece of information into a picture that is already neatly framed in their minds.No one understands this better than Barack Obama and his team, who won the 2008 election in part because they were better storytellers than the opposition. The pro-Obama narrative featured an almost mystically talented young idealist who stood for change in a disciplined and thoughtful way. This easily outpowered the anti-Obama narrative, featuring an opportunistic Chicago pol with dubious relationships who was more liberal than he was letting on.A year into his presidency, however, Obama’s gift for controlling his image shows signs of faltering.

One notes that the regime that KSR v. Teleflex pushed upon the patent community may not be a desirable one, in that it is a framework that favors subjectivity over objectivity. What is "common sense" and a good story to one person, is not necessarily so to another.

There is a nice comment by "step back" below. Unfortunately, I think it misses the point of those talking about "story telling" as a response to KSR. In the case of patent applicants before the USPTO (or Obama before the general population), there is a very subjective element that goes beyond the evidence on the table.

IPBiz agrees that there was a lot going on in KSR that most people do not discuss. First, it was a non-precedential case of the CAFC, not the sort of thing that the Supreme Court typically reviews. Second, the substantive issue of obviousness was not even at issue in the case; the CAFC did not hold that the claims were, or were not, obvious. Third, there was a lot of discussion of expert testimony, with the CAFC believing more in patent applicant's expert and the Supreme Court going more with the other side's expert. The facts were pretty clear. Story telling was the issue.

Separately, first formed opinions are tough to break. The Supreme Court went into KSR with some strong beliefs (eg gobbleygook) that may, or may not, have existed by the end of the case. Along this line, compare Justice Scalia's discussion of text in the Hatch-Waxman Act in Merck v. Integra to Justice Scalia's earlier opinion.

An article in the Badger-Herald notes that a Professor Chad Weidner has a lawsuit against the "paper mill" R2C2 and its owner Rusty Carroll. Although one can readily see why an academic might have problems with a company that sells term papers and the like, one notes that there are similar areas wherein academics don't take such strong stands.

For example, Dean Velvel suggested the Laurence Tribe plagiarism matter was more of a matter wherein Tribe had students ghost-write his book. Is there a significant difference between a professor paying students to ghost-write and students paying a "paper mill" for someone else's work?

And what about all those Congressmen who entered text into the Congressional Record, as if written by the Congressmen, when the text was written by one lobbyist?

“I think it is important to teach students that there are no shortcuts, and that real research is both time consuming and difficult. To think that there is some kind of quick fix, be it a paper sold online, a paper borrowed from a peer or creative rewriting of an academic’s work is just unacceptable.”

***Or, pushing the envelope further, when one professor agrees to adopt the position of another professor, in writing and in reviewing the work of others, for political, rather than academic ends, is there a problem? See

Sunday, November 29, 2009

An article in the Milwaukee Journal Sentinel ends with a quote of David Kappos, USPTO Director: "But the truth is the USPTO is struggling."

The article is mainly about a company co-owned by Dick Capstram: As a self-educated inventor whose father ran a garage in Chicago, Capstran won his first patent in 1969 for an automotive exhaust system.

Does patenting a better “muffler” help the auto industry? In the automotive industry – where cars are sold based upon every factor other than patents

But do Gray and Wegner think about folks like Mirk Buzdum and Dick "Cappy" Capstran and Jacob Krippelz? Probably not.Buzdum was quoted:

"It's obvious that these technologies are valid, because people are stealing them and they're in production."

Jon Dudas (now at Foley & Lardner, along with Wegner) was also quoted:

"The backlog will grow in the medium- and long-term. Without changing the funding system, the growing backlog and inability to support and hire examiners becomes a vicious cycle."

Coincidentally, Buzdum and Capstran use a Foley & Lardner attorney: They also have hired one of Milwaukee's best-known patent attorneys, Barry Grossman of Foley & Lardner.

Much of the article is about the USPTO program of "abandon one; accelerate another":

Now, under new management, the agency has proposed allowing "small entity" companies with two or more pending applications to accelerate the examination of one of them - but only if the applicant will abandon all rights to another.

As stated in 35 U.S.C. 41(h)(1) and 37 CFR 1.27(a), an owner of a patent or patent application is entitled to Small Entity Status if and only if:

The owner is a "person" (i.e. individual or individuals) who has not assigned, granted, conveyed, or licensed, and is under no obligation under contract or law to assign, grant, convey, or license, any rights in the invention. An inventor or other individual who has transferred some rights in the invention to one or more parties, or is under an obligation to transfer some rights in the invention to one or more parties, can also qualify for small entity status if all the parties who have had rights in the invention transferred to them also qualify for small entity status either as a person, small business concern, or nonprofit organization under this section.; orThe owner is a "small business concern", meaning a business which meets the size standards set forth in 13 CFR 121.801 through 121.805 to be eligible for reduced patent fees.

(...)

Once you've established your Small Entity status when you file the application, you can continue to pay small entity fees until you (a) file a continuing application (continuation, division, CIP), or (b) file a reissue application, or (c) pay the issue fee, or (d) pay any maintenance fee which is due after the patent issues. Before you take any of these actions, you need to make a new determination of your eligibility for small entity treatment. This is set forth in the Patent Rules at 37 CFR 1.27(f) and (g):

(f) Assertion requires a determination of entitlement to pay small entity fees. Prior to submitting an assertion of entitlement to small entity status in an application, including a related, continuing, or reissue application, a determination of such entitlement should be made pursuant to the requirements of paragraph (a) of this section. It should be determined that all parties holding rights in the invention qualify for small entity status. ...

(g)

(1) New determination of entitlement to small entity status is needed when issue and maintenance fees are due. Once status as a small entity has been established in an application or patent, fees as a small entity may thereafter be paid in that application or patent without regard to a change in status until the issue fee is due or any maintenance fee is due.

(2) Notification of loss of entitlement to small entity status is required when issue and maintenance fees are due. Notification of a loss of entitlement to small entity status must be filed in the application or patent prior to paying, or at the time of paying, the earliest of the issue fee or any maintenance fee due after the date on which status as a small entity as defined in paragraph (a) of this section is no longer appropriate. The notification that small entity status is no longer appropriate must be signed by a party identified in § 1.33(b). Payment of a fee in other than the small entity amount is not sufficient notification that small entity status is no longer appropriate.

Further to an earlier IPBiz report, the blog IPKat reports criticism of a report by John Sulston, Sarah Chan and Professor John Harris published in the Guardian. [see Manchester misleads on patents ]

The Chartered Institute of Patent Attorneys [CIPA] noted: “Contrary to what is stated in the report, ... IP rights do not ‘have the tendency to stifle access to knowledge and the free exchange of ideas that is essential to science’. Publication and knowledge-sharing is at the heart of the IP system. Not only is there a vast amount of scientific and technical information available from patent databases around the world, but the majority of it is not available from any other source.”

See also LBE's article in 8 JMRIPL 80 (2008). Once again, the academics don't have a clue.

Back in 2006, when the eminent US statistician Professor Edward Wegman produced an expert report for the US Congress vindicating Steve McIntyre's demolition of the "hockey stick", he excoriated the way in which this same "tightly knit group" of academics seemed only too keen to collaborate with each other and to "peer review" each other's papers in order to dominate the findings of those IPCC reports on which much of the future of the US and world economy may hang. In light of the latest revelations, it now seems even more evident that these men have been failing to uphold those principles which lie at the heart of genuine scientific enquiry and debate. Already one respected US climate scientist, Dr Eduardo Zorita, has called for Dr Mann and Dr Jones to be barred from any further participation in the IPCC. Even our own George Monbiot, horrified at finding how he has been betrayed by the supposed experts he has been revering and citing for so long, has called for Dr Jones to step down as head of the CRU.

This sort of non-independent review behavior can also infest things like peer-to-patent. It already has dominated recently law review literature in patent reform.

In response to reports that Wikipedia is failing, Craig Buckler writes at sitepoint:

It’s utter nonsense. Wikipedia remains one of the most popular sites on the web and is valuable source of plagiarism for every homework-hating student! Over 14 million articles have been published, it’s normally at the top of Google searches, and receives 325 million visits every month.

Invention of the push-pin

CBS Sunday Morning on 29 Nov 09 had a short piece on art with colored pushpins. The piece did not mention Georges Seurat or pointillism. The piece did mention the invention around 1900 of the pushpin by Edwin Moore, a student at Princeton University, using phonograph needles and glass.

In short – The push-Pin was invented by Edwin Moore while he was a senior at Princeton University in 1899. The patent was approved in 1900 and the Moore Push-Pin Company was born. The original Push-Pin was made of glass and up to 1/3 of the production run would crack within.

Saturday, November 28, 2009

There is a section of Bridgewater, New Jersey named "Bradley Gardens," which name derives from William Bradley (1852-1924).Of relevance to recent discussion in Bilski oral argument about horse training methods, Bradley got his start by using horses to move things. One of Bradley's early jobs was moving dirt from a subway tunnel constructed under part of Broadway (near Warren and Manning) in 1869. Alfred E. Beach had invented a bore/tunneling shield, which was used in the demonstration tunnel, which has been mentioned in Ghostbusters II, An American Tail, and CSI: NY. Beach did work with pneumatics, and separately was co-owner of Scientific American. Landowners in Manhattan opposed the subway (favoring elevated railways), which set back the subway technology for more than thirty years.

William Bradley bought land from Benjamin E. Duke, which later became Bradley Gardens.

Only in 1953, after the industrial transformation of the American economy was long since complete, did Congress amend the Patent Act to permit "process" as well as "product" patents. Within decades of the change, patent law was being used for purposes that Congress had plainly not envisioned in 1953.

Perhaps more importantly, the law was in flux as to what type of method claims were available. For example it was not until 1909, in Expanded Metal Co. v. Bradford, 214 U.S. 366 (1909), that the Supreme Court made clear that patent eligible method claims did not merely need to have chemical transformations, but could also include mechanical transformations.

Indeed, when the 1952 Patent Act was adopted, the law was drafted to define patent-eligible methods broadly. See 35 U.S.C. § 100(b). Thus, perhaps Justice Scalia would find it interesting to note that since the Act was enacted, many patents have issued which claim methods of training animals (including horses): (...)

In the recent discussions of "ClimateGate" involving emails from/to professors at CRU at East Anglia University, there was a small side discussion (invoking names such as Nate Silver and Robin Hanson) on whether or not prediction markets (which incentivize accuracy) could handle the issue of global warming. There are a number of patent applications related to "prediction markets" (eg, US 20090281830 titled COLLABORATION MARKETPLACE PLATFORM SYSTEM FOR RESEARCH AND MANAGEMENT OF CHRONIC CONDITIONS ; 20090259581; 20090254475 titled PREDICTION MARKET MAKING METHOD AND APPARATUS; and see below). HOWEVER, the problem of "ClimateGate" relates to the underlying data, and presentation thereof, in publicly available documents, upon which the "prediction markets" would base outcomes. Garbage in; garbage out.

“It is a shame that academia works this way, and an academia where this stuff didn’t happen would probably be more accurate. But even our flawed academic consensus is usually more accurate than its contrarians, and it is hard to find reliable cheap indicators saying when contrarians are more likely to be right.”

These people should take a good look at the wanderings of the intellectual property academics, including the satire on YouTube. Definitely NOT more accurate than its contrarians. But of course when a given academic stakes out both sides of an issue (eg Lemley on patent grant rate), it's hard to be wrong (or right, or accurate). And, outside the IP framework, recall the ready acceptance by academics of Jan-Hendrik Schon and Hwang Woo Suk. Is the theme song for nimonik--"I like dreamin'"?

A UN scientist is declaring that his three fellow UN climate panel colleagues "should be barred from the IPCC process." In a November 26, 2009 message on his website, UN IPCC contributing author Dr. Eduardo Zorita writes: "CRU files: Why I think that Michael Mann, Phil Jones and Stefan Rahmstorf should be barred from the IPCC process."

Zorita writes that the short answer to that question is: Short answer: "Because the scientific assessments in which they may take part are not credible anymore."

If we don't cite it, it doesn't exist? Compare this IPBiz post to content in one of the East Anglia emails:I think we have to stop considering "Climate Research" as a legitimate peer-reviewed journal. Perhaps we should encourage our colleagues in the climate research community to no longer submit to, or cite papers in, this journal.

US 20090199104, titled "IDEA COLLABORATION METHOD" includes text

In today's economy, innovation is essential to the long-term success of an organization. In many organizations, new products, services, marketing initiatives, supporting tools, and other ideas arise on a frequent basis. However, the tools that allow organizations to share, collaborate on, improve, evaluate, filter and rank new ideas are very limited.

and includes claims

A method of ranking user reputation in a multi-user network, comprising:displaying, via a display interface to a plurality of registered users of a multi-user network, a plurality of concepts for discussion;receiving, from a first registered user via a data interface, a discussion post and a ranking for a selected one of the displayed concepts;receiving, from a plurality of other registered users, a plurality of responses to the first registered user's discussion post, wherein each response includes an indication of whether the response is positive or negative; anddetermining, via a processing device, a reputation rank for the first registered user, wherein the reputation rank is determined based on:a number of discussion posts received from that registered user, anda number of positive responses received from the other registered users for the first registered user's discussion posts; anddisplaying the reputation rank to the registered users via the display interface.

The computer program product of claim 9, wherein the code ensures that determining the reputation rank for the first registered user is also based on:an amount of virtual money that the first registered user has invested in correct outcomes in a prediction market; andan amount of virtual money that the first registered user has invested in incorrect outcomes in the prediction market.

The first inventor is Paul Pluschkel, and the prosecuting firm was Pepper Hamilton.

Note also US 20090198565 titled IDEA COLLABORATION SYSTEM , with claims including

An idea collaboration system, comprising:an innovation market that accepts and displays a plurality of user-submitted ideas;a discussion section that for a first one of the user-submitted ideas, accepts from registered users comments and rankings about the first idea;an idea merit section that determines, using a processing device, and displays, via a display device, an indication of merit for the first idea, where the indication of merit is a measurement based on at least:a number of different registered users who have submitted comments to the discussion section for the first idea,a determination of user interest for the first idea, anda reputation rank for each registered user from whom the discussion section received a positive ranking for the first idea.

**IPBiz notes that, no, Mike Masnick is not a co-inventor on either of the above applications.

**In passing

US 20080294549, first claim

A computer-implemented method comprising:

receiving an offer to pay for advertising to be run in a printed publication according to offer parameters that include a publication time;receiving an acceptance to run the advertising according to the offer parameters; receiving, at a submission time, an electronic tearsheet, the submission time being after the publication time of the advertising; andcharging a corresponding advertiser a first amount and paying a corresponding publisher a second amount when the submission time is within a first predetermined period of time of the publication time and when a challenge to the electronic tearsheet has not been received from the advertiser within a second predetermined time after the submission time.

**As to utility:

Some implementations may provide one or more of the following advantages. An electronic advertising system may provide advertisers with new advertising markets and publishers with new advertising revenue. An electronic advertising system may facilitate an efficient and inexpensive method for publishers to provide electronic tearsheets as evidence that advertising was run according to agreed-upon parameters. An electronic advertising system may facilitate an efficient and inexpensive method for advertisers to verify that advertising was run according to agreed-upon parameters. Criteria for charging advertisers and paying publishers may incentivize accuracy and timeliness, which may lead to accounting efficiencies and increased revenue.

responsive to receiving a request to upgrade a multi-tiered application, wherein components of the multi-tiered application are deployed across a plurality of virtual machines, selecting an appropriate integrated patch for the upgrade to form a selected integrated patch, wherein the selected integrated patch includes an integrated set of patches for the components of the multi-tiered application, state update data, and order constraints;upgrading the components of the multi-tiered application that are specified in the selected integrated patch by using the integrated set of patches and the order constraints;updating a state of the components of the multi-tiered application that were upgraded to form an updated state of the multi-tiered application by using the state update data; andsaving the updated state of the multi-tiered application to storage.

Friday, November 27, 2009

President Barack Obama has created a new Presidential Commission for the Study of Bioethical Issues and appointed Amy Gutmann, president of the University of Pennsylvania, to serve as chair and James W. Wagner, president of Emory University, to serve as vice chair. The committee will ultimately be composed of 13 members, it is unclear when the other 11 will be named.

Isabel receives a letter from the previous editor of the “Review of Applied Ethics,” Dr. Christopher Dove, in which he accuses her of aiding and abetting plagiarism in an article published under her guidance.

While Isabel investigates source documents for the allegedly plagiarized article, she finds that the doctor is also guilty of that offence.

She plans to acknowledge her mistake in the next issue of the magazine, but is rebuffed by an associate of Dr. Dove who asks her to step down as editor.

Isabel reveals Dr. Dove’s plagiarism to the associate and strengthens her counter-attack by offering him her recommendation for editorship of a prestigious publication.

Wegner and Gray get silly over automotive patents. "Does patenting a better muffler help the auto industry? In the automotive industry - where cars are sold based upon every factor other than patents - more patents are obtained by the majors than in biotech and pharma." Style matters, but cars are in fact sold based upon leading technology, which is, of course, embodied in patents. Toyota leads the world in automotive sales, technology, and patents.

Meanwhile, back at district court ranch in ND Ill, one Jacob Krippelz has won a $55 million dollar verdict against Ford for infringement of a patent involving a sideview mirror light.

"The sending of the patent made good sense for Krippelz. He was not in a position to put his invention into commerce; he did not make automobiles or their parts. His market was automakers, and their suppliers. It is quite reasonable that he would send his patent, once issued, to an automaker, and that is what he did."

Would the IT people, or Mike Masnick, call Krippelz a patent troll? Also, from the Sun-Times:

Because he bought Ford trucks and he liked Mercedes-Benz, Krippelz sent the patents to both companies.

"Ford turned him down. Mercedes turned him down," said Krippelz's attorney, James Ryndak.

Fast-forward to 1997. Krippelz walked into a Ford dealership in St. Charles and was greeted by a salesman congratulating him on selling the "puddle lamp" idea to Ford, which had put the lights on 1998 Ford Explorer models.

See alsohttp://ipbiz.blogspot.com/2008/05/hr-5638-crash-parts-and-patents.html

Neither Gray/Wegner nor PatentHawk talk about windshield wipers or the infringement litigation against the Toyota Prius.Yes, cars are about technology, but whose technology?

The PatentHawk blog did have some memorable comments:

"If you are going to take on the big boys, you walk into a gun fight carrying a knife."

If I'm going to take on the big boys I generally ride into a gun fight in a tank.

[IPBiz notes that, in the above story, Jacob Krippelz, the "man with the knife [a patent] in the gun fight," walked away with $55 million.]

and

However, take for example, claim 1 of US Patent No. 7,624,231 issued today (11/24/09) to IBM, which consists of only 56 words:

1. A computer implemented method for caching data, the method comprising: striping value data associated with each of a plurality of keyed data sets across a plurality of processes in a data process set; and accessing a first keyed data set among the plurality of keyed data sets using at least one of the plurality of processes.

If you send me a C&D letter on this, I'm much more worried about infringement.

Anyone can play the "bash on patents" game by picking on a single patent.

IPBiz notes that academics have been playing the "bash on patents" game with the swing patent and the "peanut butter and jelly sandwich" patent for years, even though both are gone.

Thursday, November 26, 2009

InformationWeek noted that Apple filed suit against Media Solutions Holdings, a company based in Anaheim, on 23 Nov. 09 concerning sales by Media of power adaptors for Apple computers.

InformationWeek noted: "Of the 15 or so patent lawsuits filed during the second half of 2009 that involve Apple, the company is the plaintiff only in this one case."

InfomationWeek also noted: "In testimony before the House Judiciary Committee in April, David Simon, chief patent counsel for Intel -- a member of the Patent Fairness Coalition -- said, "This litigation effectively imposes a tax on the creation and use of innovative technology products. That is precisely the opposite of what we want in our economy."

In the present situation pertaining to patent grant rates, the impact of the first paper by Quillen and Webster, which asserted a 97% patent grant rate, extended later in time than the second paper by Quillen and Webster which withdrew the 97% patent grant rate and posited (among other numbers) an 85% patent grant rate. Thus, the Harvard Law Review15and the chief patent counsel of Intel16 referred to the conclusions of the first Quillen and Webster paper in the year 2003, after the conclusions had been modified in 2002.17

David Simon of Intel (read his testimony before the House Subcommittee on Courts, the Internet, and IP—it covers similar concerns) joined the chorus of businesses who hate the uncertainty that patent litigation presents. I fell out of my chair when I heard the size of his patent filing budget compared to Intel's research budget, and he said that he wasn't even counting the litigation budget. Simon presented the picture that an inordinate amount of time is being spent on these issues every year, siphoning away funds that could be going into giving your laptop a 40GHz processor that won't set fire to your pants. (OK, those are my words, but you get the idea.) [The blog was oblivious to the problem on patent grant rate.]

In passing, IPBiz notes some other commentary in the blog which has turned out to be quite inaccurate:

Post-Grant Review and Opposition Everyone loves this. They differ only on the details, such as how long a challenger should have to state her opposition, how to keep the discovery limited enough to keep costs low while allowing reasonable investigation, and the range of issues that are subject to opposition.

#1. Within the coming decade it may be estimated that just 150 companies will account for 50 % of all American patents granted, while just the top ten companies will soon account for 20 % of all patents granted

#2. The Top Ten EE/IT/software companies typically patent 1500 to 4000 or more inventions per year, an order of magnitude more than the biotech/pharma industries which top out at about 400 patents per year.

IPBiz: This is supposed to be surprising?

IAM (Joff Wild) didn't think so, but then went off on a tangent, as if the words Quillen/Webster were not in the vocabulary:

Essentially none of this is much of a surprise. I think everyone who takes an interest in these things realises that a relatively low number of applicants dominate the flow of traffic not only to, within and from the USPTO, but also at most major patent offices across the world. What I would like to see is a study that contrasts applications with grants; in other words what kind of conversion rates do applicants have?

LBE made the following comment to IAM on 26 Nov:

Of -- What I would like to see is a study that contrasts applications with grants; in other words what kind of conversion rates do applicants have? --, one recalls that just a few years ago Quillen and Webster brought us the patent allowance saga, in which they argued that what IAM calls a "conversion" rate had to consider the number of continuing applications involved. This done, QW came up with the 97% number as a bound (attracting much publicity), although they later fluttered down to around 85%.

This, however, is not the most important issue. In the world of chemistry, one has the concepts of "number average" and "weight average". Gray/Wegner and IAM are placing significance on "numbers" of patents, rather than on the content of the claims therein (the "weight" or technical impact) . IAM neglected to comment upon the final statement of the Gray/Wegner presentation:

--nor is any implication necessarily expected to be drawn from the data--

In the pharma area, getting a patent is just the beginning of long drawn out struggle involving tests and regulatory approvals and then an extensive marketing campaign. In the IT area, patents are more like "I had this idea after lunch." With no major concern about testing, regulatory approval, or marketing of the patented idea, it's not a big surprise that IT folks gets lot more patents than does pharma.

Contemplate claim 1 of IBM's US 20090119148: A method including: defining, by a user, a time template including a plurality of predefined time intervals for scheduling meetings; andapplying the time template across a collaborative system.

In patent reform, the big doughnut sellers (eg, IBM, Cisco) are complaining about the little doughnut sellers ("trolls") and are trying to implement "reform" to favor the big doughnut sellers, rather than to get rid of the doughnuts. The popular press would have the public believe that the little doughnut sellers are the only ones selling doughnuts, and that "reform" will get rid of the doughnuts. Anybody who actually advocated getting rid of the doughnuts would meet the same fate as Dr. Newsom, likely from doughnut selling lawyers. Furthermore, the position of the big doughnut sellers would do significant harm to smaller vendors, who aren't selling doughnuts at all.

In recent proposals for patent reform made by the Federal Trade Commission and by the National Academy of Sciences, there has been discussion of the possibility that the grant rate of patents by the United States Patent and Trademark Office [USPTO] is high compared to that of other industrialized countries, including that of Japan and those of Europe. This discussion began with papers of Quillen and Webster that suggested that the grant rate might be as high as 97% and more reasonably is at least 85%. Although the actual grant rate at the USPTO is typically in the range 62% to 68%, Quillen and Webster suggested the higher numbers based on an analysis of continuing applications (including continuations, divisionals, and continuations-in-part). The present paper suggests that the analysis of Quillen and Webster is flawed both legally and methodologically, and that recent work by Clarke, which places the corrected grant rate at less than 75%, is more accurate.

**Of the author Justin E. Gray referenced by IAM, from the Foley website-->

Mr. Gray obtained his bachelor's degree in computer science and mathematics from the University of Wisconsin - Madison (B.S., with distinction, 2003). He focused his studies on areas such as cryptography, combinatorics, database management systems, and artificial intelligence. His law degree was conferred by Northwestern University School of Law (J.D., cum laude, 2006), where he was a staff member and symposium editor for the Northwestern Journal of Technology and Intellectual Property. While in law school he was a member of the Northwestern National Trial Team.

**UPDATE. To IAM on 30 Nov 09-->

At the same time that the IAM Blog is talking about a --a major programme of research designed to explore the role that intellectual property plays as a facilitator of both innovation and economic growth --, one has the "Manchester Manifesto" which is suggesting quite a different direction for IP. See for example:

Of -- Roger also said that industry should be there as "expert witnesses" --, the East Anglia/CRU business currently going in the UK shows how easily the device of experts/peer review can be manipulated. The "nuts and bolts" of patent law, at the end of the day, may be more of a political issue, allocating who gets what, as the "patent reform" debates in the US of the last few years have illustrated. See also

Patent law is crucial to encourage technological innovation. But as the patent system currently stands, diverse industries from pharmaceuticals to software to semiconductors are all governed by the same rules even though they innovate very differently. The result is a crisis in the patent system, where patents calibrated to the needs of prescription drugs wreak havoc on information technologies and vice versa. According to Dan L. Burk and Mark A. Lemley in The Patent Crisis and How the Courts Can Solve It, courts should use the tools the patent system already gives them to treat patents in different industries differently. Industry tailoring is the only way to provide an appropriate level of incentive for each industry.

We hope, in short, to convince the reader of three things: (1) that a purely unitary patent system no longer fits the extraordinarily diverse needs of innovators in today’s technology industries; (2) that the solution is not to split the patent system into industry- specific protection statutes, but to tailor the unitary patent rules on a case-by-case basis to the needs of different industries; and (3) that it is the courts, not Congress or the PTO, that are best positioned to do this tailoring.

Masnick's description -- Lemley just came out with an entire book against the patent reform bill in Congress -- seems a bit different than Lemley's!

Of -- t seems to me that there is a lot more the corporate world could be doing to ensure that examiners at the USPTO and other offices are able to do their jobs as effectively as possible, -- one recalls that the theme of applicants doing more work was frequently expressed by former Director Dudas in the context of the proposed rules changes. One recalls that many folks in the IT industry were complaining about low quality patents and continuation application abuse, even though they themselves arguably were the biggest abusers. Of continuations, note:

Of -- taking a step back and making a well-thought out decision that proceeding in the face of killer art or some other issue is not likely going to secure something of more than fleeting value --recall the quote including --patent the damned thing anyway-- within the Wall Street Journal after the Unocal patent got traction.

Of wikipedia, note the statement cyanobacteria "differ from other gram-negative bacteria in that the quorum sensing molecules autoinducer-2 and acyl-homoserine lactones are absent." Can you say Sharif?

Tuesday, November 24, 2009

The victim on the Nov. 24 episode of NCIS - Los Angeles was making money big time from "submarine patents." No not that kind: patents related to real submarines.

The murderer worked at a law firm.

The episode disclosed that Abby Sciuto has a blog.

***Separately

Philly channel 3 news on Nov. 24 had a report by Stephanie Stahl suggesting that generic drugs did not function equivalently to proprietary drugs, especially in the area of seizure drugs. This was attributed to things like absorbents. The active chemical is of course the same. The report noted that pharmacists could substitute generic for proprietary in NJ and PA, but not in DE.

The Washington Times presents an account describing a theft of email from a university (U East Anglia), which email suggested problematic behavior by a variety of professors at East Anglia and elsewhere:

It was announced Thursday [19 Nov 09] afternoon that computer hackers had obtained 160 megabytes of e-mails from the Climate Research Unit (CRU) at the University of East Anglia (UEA) in England. Those e-mails involved communication among many scientific researchers and policy advocates with similar ideological positions all across the world. Those purported authorities were brazenly discussing the destruction and hiding of data that did not support global-warming claims.

Of specifics:

Among his e-mails, Mr. Jones talked to Mr. Mann about the "trick of adding in the real temps to each series ... to hide the decline [in temperature]."

Mr. Mann admitted that he was party to this conversation and lamely explained to the New York Times that "scientists often used the word 'trick' to refer to a good way to solve a problem 'and not something secret.' "

Another professor at the Climate Research Unit, Tim Osborn, discussed in e-mails how truncating a data series can hide a cooling trend that otherwise would be seen in the results. Mr. Mann sent Mr. Osborn an e-mail saying that the results he was sending shouldn't be shown to others because the data support critics of global warming.

The Times story concludes:

We don't condone e-mail theft by hackers, though these e-mails were covered by Britain's Freedom of Information Act and should have been released. The content of these e-mails raises extremely serious questions that could end the academic careers of many prominent professors. Academics who have purposely hidden data, destroyed information and doctored their results have committed scientific fraud. We can only hope respected academic institutions such as Pennsylvania State University, the University of Arizona and the University of Massachusetts at Amherst conduct proper investigative inquiries.

"In my opinion, there are two broader issues raised by these emails that are impeding the public credibility of climate research: lack of transparency in climate data, and 'tribalism' in some segments of the climate research community that is impeding peer review and the assessment process."

Elsewhere in the Times story:

Much more important are the e-mails showing attempts to intimidate the editors of journals and the refereed scientific literature."

Messages Pat Michaels [of Cato] objects to include a March 19, 2009, e-mail from CRU Director Phil Jones in which he complains to another scientist about the new editor of Weather, a journal published by the Royal Meteorological Society. "If I don't get him to back down, I won't be sending any more papers to any RMS journals and I'll be resigning from the RMS," Jones writes, in an apparent protest to a change in the journal's guidelines for authors.

one of the most damning findings in the archives concerns the corruption of the peer-review process.

In one email, under the subject line "HIGHLY CONFIDENTIAL," Phil Jones of East Anglia writes to Mann: "I can't see either of these papers being in the next IPCC report. Kevin and I will keep them out somehow--even if we have to redefine what the peer-review literature is!"

In another, Mann--discussing a journal that has published a paper by skeptical scientists, puts forward a plan for such a redefinition:

This was the danger of always criticising the skeptics for not publishing in the "peer-reviewed literature". Obviously, they found a solution to that--take over a journal! So what do we do about this? I think we have to stop considering "Climate Research" as a legitimate peer-reviewed journal. Perhaps we should encourage our colleagues in the climate research community to no longer submit to, or cite papers in, this journal. We would also need to consider what we tell or request of our more reasonable colleagues who currently sit on the editorial board...

The scare quotes around "peer-reviewed literature" are Mann's. And it hardly needs to be said that peer review is a sham if papers that present alternative hypotheses are not even allowed into the process.

When it comes to his handling of Freedom of Information requests, Professor Jones might struggle even to use a technical defence. If you take the wording literally, in one case he appears to be suggesting that emails subject to a request be deleted, which means that he seems to be advocating potentially criminal activity. Even if no other message had been hacked, this would be sufficient to ensure his resignation as head of the unit.

I feel desperately sorry for him: he must be walking through hell. But there is no helping it; he has to go, and the longer he leaves it, the worse it will get. He has a few days left in which to make an honourable exit. Otherwise, like the former Speaker of the House of Commons, Michael Martin, he will linger on until his remaining credibility vanishes, inflicting continuing damage to climate science.

Monbiot on "experts": Hoggan and Littlemore have shown how fossil fuel industries have employed "experts" to lie, cheat and manipulate on their behalf.

The response to this among the defenders of Mr. Mann and his circle has been that even if they did disparage doubters and exclude contrary points of view, theirs is still the best climate science we've got. The proof for this is circular. It's the best, we're told, because it's the most-published and most-cited—in that same peer-reviewed literature.

That text should sound eerily familiar to those in the "patent grant rate debate." That's how Lemley referred to Quillen/Webster (over Clarke) until he did a 180 flip in "Rubber Stamp."

Also in wsj:

Even so, by rigging the rules, they've made it impossible to know how good it really is. And then, one is left to wonder why they felt the need to rig the game in the first place, if their science is as robust as they claim. If there's an innocent explanation for that, we'd love to hear it.

Peer reviewing is often conducted through a mates' club, and all too often the matter of who gets published and who gets rejected is determined by who you know and where you stand in a particular academic debate.

(...)

The politicisation of peer review in the climate-change debate raises issues that concern all scientists. We must depoliticise the peer review system and encourage scientists to think of themselves as disinterested researchers. That does not mean scientists can't have opinions or must not participate in political campaigns. It means that they do not confuse science with ideology. That way, they would not have to worry every time they send an email.

***

In an editorial, Matthew Schofield of the Kansas City Star writes:

The UEA response, in it's entirely:

"The publication of a selection of the emails and data stolen from the Climatic Research Unit (CRU) has led to some questioning of the climate science research published by CRU and others. There is nothing in the stolen material which indicates that peer-reviewed publications by CRU, and others, on the nature of global warming and related climate change are not of the highest-quality of scientific investigation and interpretation. CRU’s peer-reviewed publications are consistent with, and have contributed to, the overwhelming scientific consensus that the climate is being strongly influenced by human activity. The interactions of the atmosphere, oceans, land, and ice mean that the strongly-increasing concentrations of greenhouse gases in the atmosphere do not produce a uniform year-on-year increase in global temperature. On time-scales of 5-10 years, however, there is a broad scientific consensus that the Earth will continue to warm, with attendant changes in the climate, for the foreseeable future. It is important, for all countries, that this warming is slowed down, through substantial reductions in greenhouse gas emissions to reduce the most dangerous impacts of climate change. Respected international research groups, using other data sets, have come to the same conclusion. (...)" [by Phil Jones]

IPBiz notes first that it is sad that Matthew Schofield, an editorial columnist for the Star, doesn't know the difference between --its-- and ==it's==. Second, Schofield's comment --The emails are part of the normal scientific discussion. -- overlooks the part within the emails about subverting FOIA requests. Are strategies to avoid the law "part of the normal scientific discussion"? Schofield, unlike writers for the New York Times and the Wall Street Journal, ignores the issues raised as to peer review.

We may never know how much of the scandal stemmed from an ideological crusade, and how much was simply ambition to rise in academia. Unfortunately, the current system of reward for scientists, in which their rank is largely determined by a quick perusal of the length and source of a publication list by funding bureaucrats rather than a penetrating analysis of their work by true peers, fosters such shoddy work.

IPBiz has given incidents of false advertising, including California's campaign for Proposition 71. Finance.yahoo gives eightnotable examples of false advertising, with culprits including Target, Dell, and Nike.

In a case reminiscent of last year's SEX ROD opposition [TTABlogged here], the New York Yankees have opposed registration of the mark BASEBALLS EVIL EMPIRE (in standard character form) for clothing, claiming that the mark is disparaging, or suggests a false connection, or is likely to cause confusion. The notice of opposition contains no citations to the Trademark Act, but presumably the Yankees are relying on Sections 2(a) and 2(d). New York Yankees Partnership v. Evil Empires, Inc., Opposition No. 91192764.

See BusinessWeek post by Michael Arndt titled Patent Volume Isn't the Best Innovation Gauge. Arndt writes the Patent Board publishes five more ways to put a value on patent portfolios, including citations by other patent seekers. Apparently, Arndt and "the Patent Board" have not been keeping track of the literature which questions the value of patent citations.

BN [Breitzman and Narin ] promise to review all the studies which have shown the importance of highly cited patents. There are many papers that have questioned the value of patent citation. n12

n12 Edlyn S. Simmons and Nancy Lambert, "Patent Statistics: Comparing Grapes and Watermelons", Proc. Montreux 1991 Int. Chemical Information Conference published in "Recent Advances in Chemical Information", Royal Society of Chemistry, Spec. Publ. 100, 1992.; see also Stuart M. Kaback, Nancy Lambert, and Edlyn S. Simmons, "Patent Citations: Source of Insight or Nothing to Get Excited About?", August 1994 meeting of American Chemical Society [this reference notes: "Patent citations turn out to be quite different in character from the citations we may be familiar with in the citation literature."]; E. Simmons, "Patent family databases 10 years later", Database, Vol. 18(3), Pg. 28, (June, 1995).As I noted in June, 1996, some highly cited patents may be of pioneering status. However, since all highly cited patents are not of pioneering status, one cannot use a high citation frequency as a proxy for value. All factors leading to high citation must be analyzed. Even in prestigious prizes, such as the Nobel or the Lasker, all factors involved must be considered n13.

Further to an earlier IPBiz post on citation [Most cited law profs ], IPBiz notes that Google Scholar can rank publications according to number of citations [for example, on LBE]. The citation numbers tend to be low, and don't include many of the citations which would be found on ISI.

Separately, the advanced scholar search on Google Scholar allows one to search on law reviews and on published court opinions.

IPBiz notes a useful feature for "advanced scholar" would be to identify papers that SHOULD HAVE BEEN CITED by a given author, but weren't. This could be done both by keywords and by comparing references which actually were cited.

Sunday, November 22, 2009

Back in August 2009, the story of a corrupt USPTO employee was mentioned:

Minister pleads guilty to stealing $500K from U.S. patent office

Reid coordinated with a patent office employee, referred to as "K.L.P." in court documents, to have $451,252 transmitted from patent office accounts to a Redeemed Music House bank account, he admitted.

In stories coming out in Nov. 09, the employee is identified as Karen L. Parish:

Karen L. Parish worked at the patent office until 2005. By the time she left, she and Michael Reid had used Reid's company, Redeemed Music House LLC, to funnel $534,338 from dormant patent office accounts used by businesses to cover patent application costs, the two admitted earlier this year.

The story is sad:

The costs of raising a daughter and other expenses left Parish about $8,000 behind in her taxes. Her wages were garnished and she was coming up short on her electric bill.That's when Parish took a close look at the patent office's refund process for the dormant accounts, she said in the statement. She knew she needed someone else in on the scheme or she would be quickly discovered. The only person Parish could trust was Reid, and she was able to convince him to get involved, she wrote."I remember the first time I took money from the Deposit Account, I felt almost like a prostitute," Parish wrote.

A Woodbridge woman was sentenced Friday [20 Nov 09] to serve 18 months in federal prison for embezzling more than $500,000 from the U.S. Patent and Trademark Office.Karen L. Parish, 39, of Woodbridge, pleaded guilty in August to conspiracy to commit wire fraud for the scheme.She was also ordered to pay $527,478.55 in restitution.

“This case underscores the importance of strong internal controls. It also emphasizes the significant need to stress integrity as a core value within the Federal workforce,” said Inspector General Todd Zinser of the U.S. Department of Commerce. Zinser also praised new management in PTO’s Office of Financial Management for “identifying and reporting financial irregularities, which eventually led to this conviction.”

Questions or comments concerning this notice should be forwarded toMatthew Lee by telephone at (703) 305-8051, by e-mail atmatthew.lee@uspto.gov, by facsimile at (703) 305-8007, or by mail markedto his attention and addressed to the Commissioner of Patents andTrademarks, Office of Finance, Crystal Park 1, Suite 802, Washington,D.C. 20231.

While this is interesting. I agree with the other comment regarding the Bergius Process. And the now improved version, the "Kohleol" process, which is really just the Bergius with slightly different technology.

Indirect CTL technicques such as F-T are inefficient, and produce less transportation fuels than direct techniques. There's about 7 different commercially viable direct techniques mainly developed in germany, usa and japan. The first commercial scale direct CTL plant as part of this postmodern-era CTL revival is the NEDOL plant (Kohleol process), which is meant to be producing as of now... (Feb, 2008) but I doubt the Chinese government will let anyone see the results for a while.

To improve the product quality in the NEDOL coal liquefaction process (which was developed by the New Energy and Industrial Technology Development Organization, NEDO), improvement of the NEDOL process was proposed and tested by a continuous plant, which can process 1 ton of coal per day. In the improved process, the products and recycle solvent are simultaneously hydrogenated in the solvent hydrogenation section. Although the recycle solvent of the improved process became lighter and degradation of the recycle solvent quality was supposed, via more-severe hydrogenation conditions in the solvent hydrogenation section, the hydrogen-donating capability of the recycle solvent was maintained and degradation was not recognized

In an interview on "60 Minutes" on 22 Nov. 09, Maziar Bahari noted of his detention in Iran --

"...a member of Iran's elite Revolutionary Guard, thought New Jersey was paradise on Earth."

Maziar then observed that he was totally screwed, because his guards must be really stupid.

Query: did the Iranian guards get this impression from watching the movie "The Wrestler," which helped to make Cheeques (in Linden, NJ) famous?

IPBiz notes that Cheeques is less than one mile from the former site of Exxon'sCorporate Research Labs.

**On another point

IPBiz has observed that in New Jersey, the Rutgers football coach makes more than the governor.Other states also pay football coaches a lot of money. On Saturday, Nov. 21, the LSU - Old Missgame made one wonder if the money is well spent.

LSU got another chance when it recovered the ensuing onsides kick, however. The Tigers then moved to the Ole Miss 32. But rather than running the ball to improve its field-goal position, Miles again opted to throw. An incompletion, a sack and a pass for a loss of seven yards in three plays, left the Tigers with a fourth-and-26. There was only with nine seconds left and no timeouts remaining due to some poor clock management.

Amazingly, they converted on a throw from Jordan Jefferson to Terrance Tolliver at the 5-yard line with 1 second left and the clock stopped to move the chains. LSU had two choices – scramble the field-goal team on to the field and try a kick or run a play to the end zone. Instead, Jefferson spiked the ball and the clock ran out. A chance to pull out the game was lost. Yes, there was a lot of confusion in the final minutes. However, Miles is paid to keep a cool head in that situation. That did not happen.

USAToday did not mention the absolute stupidity of an Old Miss player getting out of the way of the onsides kick, which enabled LSU to recover. It's a live ball; nothing changes if you touch it. What kind of coaching was that? But for Old Miss being stupid on the kickoff, LSU would not have had the later opportunity to be stupid.

USAToday mentioned "poor clock management" by LSU, which amounted to LSU's not immediately calling a time out on an earlier play (specifically a 17-second delay in calling a timeout when only 30 seconds remained). As to the spiking event, what can one say? Universities pay these coaches big bucks and look at the work product.

How silly do Duke athletic director Kevin White and Notre Dame theology professor Edmund Malloy feel right now? In 2005, they were the Notre Dame athletic director and school president who signed Weis to a new 10-year contract through 2015 for nearly $40 million, which made him the highest-paid coach in the country. You could see their point. Weis had coached all of seven games at the time.

[Chief Judge Michel] said he’s motivated to retire instead of moving to senior judge status because he hates the muzzle that comes with being an Article III judge. He wants to lobby. He feels pretty strongly that certain parts of the pending patent reform act are outrageous.

Lest we forget, recall the words of [former] NJ Judge Mathesius who described [former NJ Chief Justice] Poritz like this:

"The Chief swept in, clad in diaphamous tulle and a high-fashion shahtoosh. Her diamante' Harlequin glasses provided interesting accent. The picture collectively brought to mind a hint of mature Andrea Dworkin with a touch of Dick Cheney." He went on to suggest she took management tips from Kim Jong II, the North Korean dictator.

Saturday, November 21, 2009

"The university does not condone plagiarism, but recognises the need to take into account a range of factors such as intention, seriousness and extent."

Text in the New Zealand Herald quotes the Listener as quoting Margaret Soltan, a professor of English at George Washington University, in Washington DC, as blogging that the University of Auckland was too quick accepting Ihimaera's word that the plagiarism was inadvertent.

"Pretending it didn't happen is the sort of thing a very provincial university will do."

David L. Wertz discussed x-ray diffraction of meta-anthracite coal. Within the text is a citation to work by LBE and co-authors on x-ray diffraction of combustion chamber deposits. Uncited in the Wertz paper is LBE's work, published in ACS Advances in Chemistry No. 217, on the x-ray diffraction of meta-anthracite.

But see also

X-ray diffraction used to measure levels of sp(2) and sp(3) carbon in fossil fuels: A microcosm of the 1990's, working harder and getting lessPETROLEUM SCIENCE AND TECHNOLOGY. 1997; 15 (1-2): 171-183

Bilski: which elements from Eldred will return?

MR. LESSIG: Well, if it flies in the face of what the Framers had in mind, then the question is, is there a way of interpreting their words that gives effect to what they had in mind, and the answer is yes.

CHIEF JUSTICE REHNQUIST: Well, you know, certainly what is happening in the country today in the way of congressional -- under the Commerce Clause is totally different than what the Framers had in mind, but we've never felt that that was the criterion. What the Framers thought of, there weren't steamboats, there weren't railroads.

MR. LESSIG: That's right.

CHIEF JUSTICE REHNQUIST: We've said there was a general grant, and that Congress was free to run with it in many respects.

Another interesting exchange:

MR. LESSIG: That's right. That's the important hurdle, and we'd like to jump that first, but the other ones, Justice, you're right, in 1831 and in 1909 Congress extended terms in a way that is inconsistent with the strongest form of the test that we have advanced. Those extensions, however, were never challenged in any court and certainly not considered by this Court.

CHIEF JUSTICE REHNQUIST: Well, doesn't that itself mean something, Mr. Lessig? The fact that they were never challenged, perhaps most people, and perhaps everybody felt there was no basis for challenging them.

MR. LESSIG: Well, Mr. Chief Justice, it's absolutely true that this case is here because of a fundamentally important changed circumstance that makes the Framers' limitations on the Copyright Clause much more significant. This is the first time I can remember where this Court has been pointed to changed circumstances as a reason to reaffirm the Framers' values, because for most of this period, Mr. Chief Justice, the only people who were regulated by copyright law under the Copyright Act would have been [*4] commercial publishers, primarily, and now for the first time the scope of this exclusive right has expanded because of the changed technology of the Internet to reach an extraordinarily broad range of creativity that never would have been imagined before.

Now, it's not the case that the earlier extensions were not questioned on constitutional grounds. In fact, Melville Nimmer, in the consideration of the 1976 act, suggested they were plainly under --

IPBiz notes the existence of Lawrence Lessig's article, "How I Lost the Big One," [ Legal Aff., Mar./Apr. 2004] concerning the outcome of Eldred v. Ashcroft, which includes the text:

There were three key lawyers on the case from Jones Day. Stewart was the first; then, Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer had a common view about how this case would be won: We would only win, they repeatedly told me, if we could make the issue seem "important" to the Supreme Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, the justices would never vote against "the most powerful media companies in the world."

[of the result]

I first scoured the majority opinion, written by Ginsburg, looking for how the court would distinguish the principle in this case from the principle in [United States v. Lopez, 514 U.S. 549 (1995)]. The reasoning was nowhere to be found. The case was not even cited. The core argument of our case did not even appear in the court's opinion. I couldn't quite believe what I was reading. I had said that there was no way this court could reconcile limited powers with the com-merce clause and unlimited powers with the progress clause. It had never even occurred to me that they could reconcile the two by not addressing the argument at all.

***Separately, from LBE in IPT ( April, 2002 ) -->

On the copyright front, on February 18, the Supreme Court granted cert in Eldred v. Ashcroft (99-5430) to review the holding by the U.S. Court of Appeals for the D.C. Circuit that the 1998 Sonny Bono Copyright Term Extension Act is constitutional. Eldred's case has been spear-headed by Professor Lawrence Lessig, who recently came under attack in an article by Edward Samuels n6 who wrote of Lessig: "He doesn't even consider the international context in which Congress acted. Lessig suggests that the United States adopt a short copyright term, subject to renewal every five years. This proposal, or indeed any proposal for a term of less than life of the author plus 50 years, would be in viola-tion of our treaty obligations under Berne." On the flip side, many point to a law review article by Justice Breyer, "The Uneasy Case for Copyright," 84 Harv. L. Rev. 281 (1970), and point to various special interests who benefit (oppo-nents call the law "the Mickey Mouse Protection Act."). Somewhat lost in all of this is the idea that copyright law is to encourage authors, and ultimately create a public domain of works of authorship. Although copyright law, unlike pat-ent law, has a work-for-hire provision, at some point the public, if not lawyers, has an expectation that the creator of the work should be rewarded.

***Elsewhere [54 Vill. L. Rev. at 144]

Although a tremendous amount of fascinating legal scholarship has built upon the idea that code is law, all of this scholarship has missed an important point. Legal scholars have responded to Lessig's maxim like visitors to a zoo where coders are the animal attraction: Code is law, so we better start studying coders. This has led to suggestions such as: let's look at what incentivizes software firms; n104 let's ask when and whether regulators should regulate coders; n105 let's try to predict what code will look like tomorrow, or worse, let's become science fiction writers and try to predict what code will (or possibly could) look like in ten years. n106

***Time quotes Lemley on Bilski:

"I don't think anyone other than Bilski thinks that Bilski deserves a patent," says Mark Lemley, a professor of law at Stanford University.

J.M. Smucker, best known to patent attorneys for the so-called "peanut butter & jelly sandwich" patent, is doing very well with the acquisitions it has made from Procter & Gamble. A Reuters story on 20 Nov 09 begins: J.M. Smucker Co, best known for its peanut butter and jelly, posted higher-than-expected quarterly results, driven by strong margins at its Folgers coffee business, and raised its full-year profit outlook, sending its shares up 5 percent.

There are IP stories throughout the Smucker saga. Of recent vintage, one notes that many of the brands acquired by Smucker, cast off by P&G, are turning into money makers. Related to all the confabulations concerning "valuing" IP, one sees that "who" owns the IP, or the product, can have a great deal to do with the value. You can't "value" IP in the absence of a plan for using it, as the Xerox story illustrates, in both a positive (xerography) and a negative (mouse) sense.

Crisco maker Procter & Gamble was a pioneer in the emerging science of creating demand. Historian Susan Strasser says the Crisco experiment started in 1911, when the company was selling Ivory soap. Cottonseed oil was a key ingredient.

{trademark angle} Originally, they tried to call it Crispo, but then they discovered that a cracker factory already had the trademark.

Journal Inquirer sues Courant over copying incident

In an article titled Suit Accuses Hartford Courant of Plagiarism , the New York Times informs us that the "Journal Inquirer of Manchester, Conn., has sued The Courant" over copying news articles, but never quite tells us what the cause of action is. There is no cause of action for plagiarism, but there is one for copyright infringement.

TV questioning "high tech" forensics?

On Monday, Nov. 16, CSI-Miami went through a number of "false positives" in forensics, including a "false positive" for blood alcohol caused by ethanol-producing micro-organisms elevating the ethanol level. [the details were not fleshed out, tho the investigators acted as if ethanol-producers were a known problem]

On Tuesday, Nov. 17, NCIS had its black-out episode, showing how the investigators were held-back without their computers.The episode included "Gibbs using the mimeograph," even though Gibbs didn't use a stencil. How many viewers have used a mimeograph, or know how it works?

Originally Posted by Stressfactor No, mimeographs still take electricity.... and the print on them is purple because of the ink used.

I am old enough to recall the smell of the alcohol and ink on a freshly mimeographed document from when I was in grade school.

No, what Gibbs was using looked like some kind of hand cranked roller copier.That is a mimeograph machine.

From Wikipedia:"Although in mid-range quantities, mimeographs remain more economical and energy efficient, easier-to-use photocopying and offset have replaced mimeography almost entirely in developed countries, although it continues to be a working technology in developing countries because it's a simpler, cheaper, and more robust technology, and because many mimeographs can be hand-cranked and thus require no electricity."

I know for certain that, growing up, my school had such a mimeograph. A few of us kids were taught to use it. Our original machine was purely manual, but we later got one that was capable of both.

Albert Blake Dick invented the Mimeograph stencil in 1884. The A. B. Dick Co., Chicago, acquired Edison’s copying system patents and, with Edison’s support, began manufacturing and marketing Edison Mimeograph systems in 1887. Models were sold in rectangular wooden boxes (Plates 21B-23). The boxes contained a hand printing frame that consisted of a flat bed or printing board and a hinged frame that held the stencil. The boxes also contained an ink roller, an inking slate, ink, varnish and a brush for making corrections, waxed stencil paper, blotters, a writing stylus, and a writing plate with a file-like surface (see Plate 19) that was 1.5" to 3" top-to-bottom and as wide as the printing frame.

On Wednesday, Nov. 18, Law & Order SVU had Olivia under accusations because of some manipulated DNA evidence. [Episode titled "Perverted" wherein (manipulated) DNA evidence links Olivia to the murder of a biker in Central Park whose gang specialized in hits and prostitution.]

Thursday, November 19, 2009

Mr. Ebert is correct on several points here - the problem of SSRN downloads is one that vexes the free flow of scholarship, but it is often the case that once a piece is published, and restricted, a working paper can often be found in some depository, somewhere, by using Google Scholar. Ebert also points correctly to what is included and not included in our references. I intend to read the citations to which he points (thank you), and if relevant they will find their way into the final published version. While I cannot speak for Harhoff, I can say that I do not consider myself an "advocate" for an opposition system. That said, my study of the topic has convinced me that, on balance, a relatively inexpensive system would do more good than harm. Are there individuals and groups that would be worse off - certainly. But, as said, my conclusion is based on the wider social welfare. We have a unitary system, and for better or worse the moving of any policy lever will have differential effects. But will the innovation system as a whole be better off? My study has led me to believe that it could be - but note the caveats in the paper, and the circumstances under which it would be undesirable and, in balance, more harmful. I would certainly not be an advocate of that outcome.

Joe Hosteny was writing about problems with oppositions before LBE was, and Mr. Hosteny was using some descriptive language, including the image of running the gauntlet. Most of these articles are not in the "law review" literature. LBE simply does not like the added expense brought to opposition procedure from the presence of depositions, which LBE does not believe to be cost-effective at the margins. LBE does believe the protest procedure needs to be beefed up, by allowing a longer time window and by allowing the protester to file at least a claim chart. which would make analysis by a patent examiner easier and quicker.

In terms of orthodoxy, I had commented earlier that the academics reviewing CIRM proposals are predisposed to follow paths already charted in the literature and in the relationships known to them. Venture capitalists also follow rather orthodox game plans, although different ones from the academics.

In a comment to the IPBiz post Does the US need European style oppositions? , Stu Graham correctly points out that the full article by Graham and Harhoff can be downloaded at the link provided by the 271Blog. An issue with things posted on SSRN is that they can be later removed ("Sikahema'd"), for example, if the authors publish in a journal that prohibits internet posting (recall Dan Hunter's "Walled Gardens," although in that specific case the journal later changed its policy. On open databases and SSRN, see for example, Pearl Goldman, Legal Education and Technology II: An Annotated Bibliography, 100 Law Libr. J. 415 (2008); Olufunmilayo B. Arewa, OPEN ACCESS PUBLISHING AND THE FUTURE OF LEGAL SCHOLARSHIP: OPEN ACCESS IN A CLOSED UNIVERSE: LEXIS, WESTLAW, LAW SCHOOLS, AND THE LEGAL INFORMATION MARKET, 10 Lewis & Clark L. Rev. 797 (2006) ).

Of relevance on the citation business is the list of references given by Graham and Harhoff, which is provided below. Also of relevance is Stuart Graham's individual interest as co-author.

Of the citation list, one will NOT find reference to papers UNFAVORABLE to the authors' position, such as "PAST AS PROLOGUE FOR PATENT REFORM: EXPERIENCE IN JAPAN WITH OPPOSITIONS SUGGESTS AN ALTERNATIVE APPROACH FOR THE U.S. (Dale L. Carlson and Robert A. Migliorini, 88 J. Pat. & Trademark Off. Soc'y 101, February 2006). One WON'T find papers unfavorable to post-grant review/opposition, such as "PATENT REFORM 2005: HR 2795 AND THE ROAD TO POST-GRANT OPPOSITIONS," (Christopher L. Logan, 74 UMKC L. Rev. 975 (2006)). One WON'T find published papers by lawyers unfavorable to oppositions, such as "Post-Grant Opposition: Building on Sand," (Joseph Hosteny, Intellectual Property Today, August 2004, page 8), "Dear AIPLA: Keep Our Message Consistent," (Joseph Hosteny, Intellectual Property Today, October 2004, page 24), or by LBE.

The point in the previous IPBiz post was that Mr. Zura did not mention the earlier advocacy by the authors ["Mr. Zura neglects to mention Professor Harhoff's PREVIOUS pushing of an opposition procedure for the US. " ], not that the authors themselves were not performing self-citation to themselves and assorted co-authors. The point in the previous IPBiz post ("where's the full paper?") was in major part an inquiry about where in the legal literature the paper appears. Just about anybody can put anything on SSRN. "It don't impress me much."

One does note that the reference list includes articles by Bessen, Quillen, and Lemley.

The references of the paper on SSRN titled Separating Patent Wheat from Chaff: Would the U.S. Benefit from Adopting a Patent Post-Grant Review? -->

About Me

I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.